Considering that the child’s welfare is an all-important factor in custody cases, all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. Thus, the juvenile courts are authorized to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances.
However, the juvenile court can not completely deprive the parents of the custody of the child unless the appropriate quantum of evidence established all of the following three conditions:
- that the child remains dependent,
- that reasonable efforts at reunification have not succeeded, and
- that it is not in the best interests of the child to return to the parents’ custody.
In the recent case of E.H v. Calhoun County Department of Human Resources, 2190441 (Ala. Civ. October 2, 2020), a child was placed in the home of her paternal grandparents. The child was removed from the custody of her parents due to drug use and domestic violence.
In response, the child’s mother filed a motion seeking the return of her child custody to her. In that motion, the mother averred that she had made behavioral and lifestyle changes, that she had participated in the individualized-service-plan process, and that she had completed services through Calhoun County Department of Human Resources. The mother claimed that the child was no longer dependent and that the child’s best interest would be served by returning custody to her.
DHR had concerns that the father was living with the mother when her older child was returned to her custody in March 2019. The mother testified at trial that she ended her relationship with the father and that she no longer lived with him. She explained that she had sought and received a protection-from abuse (“PFA”) order in her favor in September 2019 based on the father’s firing a shot from a rifle into the ceiling during their altercation. However, she admitted that the father had assisted her in moving into a new mobile home in November 2019, and the father had come by her new place. During those visitations, the mother would call law-enforcement officers to report his potential violation of the PFA order.
Regarding her substance-abuse issues, the mother testified that she had participated in “drug court” for four months and that she had also completed nine months in “TASC”. “TASC” is a program through which the mother was tested for the use of illegal drugs.
Amanda Lovell, the office manager of, and a certified recovery support specialist at, New Pathways, testified that the mother had completed the outpatient drug-treatment program. She commented that the mother should not use alcohol while taking Suboxone, the prescribed medication to treat her addiction to opioids. The mother testified that she had consumed alcohol in April 2019, but she described her use as having “only a glass of wine. The use of alcohol could lead to a relapse of the mother’s drug abuse.
The father testified that when the mother’s older child was briefly returned to her custody, such child, who was approximately 16 years old at the time, was consuming alcohol. The mother denied that she had been doing shots of alcohol with her older child, but she tested positive for alcohol on the day that child was removed from her custody for a second time.
The mother had been referred by the ISP team to drug court a second time in August 2019, but she had failed to follow through and submit to a drug-court assessment.
After the second trial date, the father had been living in the barn adjacent to the paternal grandparents’ home where the child was.
The paternal grandmother admitted that she had discovered that the father had spent the night in the barn adjacent to her home a couple of nights, but that he had not been living there full-time.
On appeal, the mother argues solely that the juvenile court’s judgment is not supported by clear and convincing evidence that the child remained dependent.
Case law provides that, “In order to make a custodial disposition of the child at the time a dispositional judgment is entered, the juvenile court is required to find that the child is dependent at the time of the disposition.”
The juvenile court could continue to completely deprive the parents of the custody of the child only if the appropriate quantum of evidence established all three conditions:
- that the child remained dependent,
- that reasonable efforts at reunification had not succeeded, and
- that it was not in the best interests of the child to return to the parents’ custody.
In this case, the juvenile court made no express finding of dependency. Given the language used by the juvenile court in the final judgment, the Court agreed that was questionable whether the juvenile court impliedly found that the child remained dependent.
The Alabama Court of Appeals could not discern whether the juvenile court concluded that the child remained dependent based on the current circumstances of the mother.
Therefore, this case was remanded to the juvenile court and to determine whether the child remained dependent by entering the express findings of fact necessary to sustain its judgment.
About the author
Sam and his wife Mary Beth were inspired to establish The Adoption Law Firm during the process of adopting their first son, Robi (read more about their experience on the blog, Go Get Robi).
Sam and Mary Beth were exposed to the great need for loving families to adopt abandoned children at home and around the world. They began to dream of a law center that could zealously advocate for children to be placed in loving homes. Eventually, that dream became a reality.
The Adoption Law Firm exists to zealously advocate for orphaned children to be adopted into loving homes.
Samuel J. McLure, Esq.
- Thomas Goode Jones School of Law
J.D., Cum Laude
- Huntingdon College
B.A. Business Administration – International Business
- Alabama Attorney General Candidate (2018 Election Cycle)
- The Adoption Law Firm (2011 – Current)
- Lifeline Children’s Services (2015 – 2016)
Senior Legal Counsel
- Sasser, Sefton, Brown, Tipton, & Davis (Fall 2012)
Law Clerk – Corporate Litigation
- Jones Walker (Summer 2010)
Law Clerk – Banking & Finance
- Supreme Court of Alabama (Spring 2010)
Law Clerk Externship – Justice Smith
- Prof. Matt Vega – Jones School of Law (Fall 2009 – Spring 2010)
Research Assistant – Alien Tort Statute
- Office of the Attorney General of Alabama (Summer 2009)
Law Clerk Internship – White Collar Crime Division
- Alabama’s Political Candidates and Their Capacity to Care For Orphans, Alabama Political Reporter (April 25, 2017).
- The End of Orphan Care, Archdeacon Books (June 8, 2016).
- Absent Biological Fathers in Adoption: Noticing the Nuance of Notice, Faulkner Law Review, Vol. 6, Issue 2, pg. 305 (Spring 2015).
- Conviction and Contentment: Surveying Alabama’s Strategies to Care for Abused and Neglected Children, Alabama Today (May 22, 2015).
- State Constitutional Personhood Amendments and the Promotion of Justice in Alabama, Regent Journal of Law & Public Policy, Vol. 4, No. 1 (Spring 2012).
- Embracing Orphan Care & Adoption, River Region’s Journey, at pg. 22 (February 2012).
- What is the Cost of Adoption?, River Region’s Journey, at pg. 26 (February 2012).
- Adoption,Sav-A-Life of Montgomery, Inc., Vol. 26, Issue 11 (November 2011).
The End of Orphan Care, by Sam McLure
The End of Orphan Care, now available through Amazon, is perhaps the most comprehensive work on orphan care, to date.
Samuel E. Upchurch, Jr., Founder and Chairman of the Board Oakworth Capital Bank, states that:
“Sam McLure makes a scholarly case for Christians everywhere to follow the admonitions in James 1:27 to visit the orphans in their afflictions. McLure paints a picture which expands the definition of “orphans” and the meaning of “visit” and calls on the Church to care for the unborn, the fatherless and the at risk youth everywhere. I began reading this book to write an endorsement but, as one with an adopted grandchild, found much historical and theological support for adoption.”